I. Introduction: History & Background

Journalists in Minnesota have a strong qualified privilege for their confidential sources and unpublished information. A state statutory privilege was created in 1973, and was amended in 1998 to make clear that it applies to unpublished information as well as to confidential sources. Federal courts in the state recognize a qualified privilege under the First Amendment.

II. Authority for and source of the right

A. Shield law statute

History
Like many other states, Minnesota reacted to the U.S. Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972), by enacting a shield statute. Early proponents of the legislation included John Finnegan (editor of the St. Paul Pioneer Press, chair of the Freedom of Information Committee of the Associated Press Managing Editors Association, and a founding member of the Minnesota Joint Media Committee), Don Gillmor (Silha Professor of Media Ethics and Law, University of Minnesota), and Peter Popovich (at the time an attorney in private practice representing the St. Paul Pioneer Press and other organizations, who later served as the first chief judge of the Minnesota Court of Appeals and as chief justice of the Minnesota Supreme Court). For more than twenty years, the statute was regarded as one of the strongest in the country in terms of protecting journalists, and was applied by the state's district courts to protect unpublished information in all forms, as well as to protect confidential sources. See N. Mate, Piercing the Shield: Reporter Privilege in Minnesota Following State v. Turner, 82 Minn. L. Rev. 1563, 1564, 1591ñ95 (1998).

That changed for a few years in the mid-1990s. In 1994, the Minnesota Court of Appeals narrowly read the statutory language as protecting only confidential sources and unpublished information "which would tend to identify the person or means through which the information was obtained." Heaslip v. Freeman, 511 N.W.2d 21, 23 (Minn. App. 1994). Under this interpretation, the court held that the statute did not protect unpublished photographs of an automobile accident that one party was seeking from a newspaper (the newspaper was not a party to this civil lawsuit). The court acknowledged that its interpretation of the statute was "finely tuned." 511 N.W.2d at 23. Despite this setback under the statute, reporters continued to receive protection under other legal bases. See, e.g., State v. Ross, 22 Media L. Rep. 2509 (Ramsey Cty., Minn., Dist. Ct. 1994) (undue burden).

The court of appeals followed its narrow view of the shield law--and extended its result to a narrow view of the First Amendment privilege--in a criminal prosecution growing out of an assault during a college campus rally. State v. Knutson, 523 N.W.2d 909 (Minn. App. 1994) (holding that reporter who witnessed assault could be compelled to testify); State v. Knutson, 539 N.W.2d 254 (Minn. App. 1996) (refusing protection to unpublished photographs of the rally if no confidential source would be disclosed).

The Minnesota Supreme Court further eroded any reporter’s privilege for unpublished information in State v. Turner, 550 N.W.2d 622 (Minn. 1996). The case arose after police charged Steven Allen Turner with felony possession of three bags of crack cocaine that they found when they searched him after he tried to evade them in his car. A newspaper photographer had been riding with the police as part of a study on crime in the community, and took pictures of the arrest. Turner wanted evidence from the photographer as "the only neutral disinterested eyewitness." The lower courts held that the photographer did not have to provide information after Turner subpoenaed him, but the supreme court reversed. The supreme court interpreted Branzburg as declaring "that no qualified constitutional privilege exists under the First Amendment that would protect reporters from compelled testimony in a criminal case." Turner, 550 N.W.2d at 628. It stated that the Minnesota shield law "was clearly intended to protect the confidential relationship which exists between a reporter and his or her sources of information," 550 N.W.2d at 631, and "rejected the argument that the Act applies to reporters who personally witness crimes, and to unpublished, nonconfidential information possessed by a newspaper," 550 N.W.2d at 630. However, it held that district courts should review unpublished material in camera to be sure that it was relevant to the case before compelling its disclosure to parties in the case. 550 N.W.2d at 629.

Media organizations and their attorneys viewed Turner as poor policy and a misreading of the statute, and lobbied for corrective legislation, which became law on April 6, 1998. The amendments added the words "whether or not it" after the words "other reportorial data" and before "would tend to identify the person or means" in the section prohibiting disclosure of information. It also modified the situations in which courts could order disclosure of unpublished information, requiring a showing that "the specific information sought" was clearly relevant to a felony or gross misdemeanor, or clearly relevant to a misdemeanor if the information sought would not reveal a confidential source or means of information. The prior law had allowed disclosure only in situations where the information sought was "clearly relevant to a specific violation of the law other than a misdemeanor."

The Minnesota Newspaper Association, the Minnesota Broadcasters Association, and the Minnesota Society of Professional Journalists strongly supported the bill. Rick Kupchella, then president of Minnesota SPJ, and media attorneys Mark Anfinson, John Borger, and Lucy Dalglish testified in favor of the bill. During one committee hearing, State Senator Allen Spear commented that he had pushed for the original law in 1973 intending that it protect all unpublished information in addition to the identity of confidential sources. The legislation passed by wide margins in both the Senate and the House of Representatives. Although the governor objected to the new legislation and issued a public statement explaining his reasons for refusing to sign it, he allowed it to become law without his signature.

The U.S. District Court for the District of Minnesota apparently overlooked the 1998 amendments when it stated that the shield law "simply does not apply" to information that does not involve a confidential relationship. Berglund v. City of Maplewood, 173 F.Supp.2d 935, 950 (D. Minn. 2001), aff'd sub nom. Zick v. City of Maplewood, 50 Fed. App'x 805, 806 (8th Cir. 2002) (unpublished). Similarly, attorneys representing parties seeking reportorial data sometimes rely upon Heaslip, Knutson, or Turner, overlooking the later changes to the statute that render those cases obsolete. See, e.g., In re Mahtani, No. 27-CV-17-11589, 45 Med. L. Rptr. 2408, 2412 (Minn. Dist. Ct., Hennepin Cty., Sept. 25, 2017).

In 2003, the Minnesota Supreme Court interpreted the defamation exception to the shield statute, holding that a nonparty reporter had to disclose which defendants named in a libel action were confidential sources for an article he wrote about a high school football coach. Weinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003). The court found that the coach had satisfied the exception's three requirements: (1) that disclosure of the source's identity would lead to relevant evidence on the issue of actual malice, (2) that there was probable cause to believe that the source had information clearly relevant to the issue of defamation, and (3) that the information could not be obtained by alternative means. 668 N.W.2d at 672ñ73. The court stressed that the test of relevance is whether evidence has "any tendency" to make a consequential fact more or less probable. 668 N.W.2d at 673. Therefore, where

the plaintiff has alleged that the defendant is the source of the allegedly defamatory statements, relevant evidence constitutes not only evidence on the source's knowledge, but also the source's identity. . . . [W]hen the identity of the speaker is hidden under the cloak of anonymity . . . it is self-evident that the identity of the speaker will lead to relevant evidence on the issue of actual malice.

668 N.W.2d at 673ñ74. The court further held that the probable cause requirement was satisfied because the district court's narrow order only required disclosure of those sources named as defendants, thereby ensuring that disclosure would lead to relevant information. 668 N.W.2d at 674. Even after this decision, the reporter refused to disclose his sources. The district court imposed financial sanctions for that refusal; local journalists contributed to a defense fund to pay those sanctions. The parties to the lawsuit settled, and the reporter was released from the disclosure order without ever revealing his sources.

In 2006, a Blue Earth County judge held that a newspaper reporter had to disclose unpublished information obtained from a telephone interview with a suicidal man during a police standoff (the man ultimately killed himself). Order Re: MS 595.024 MN Free Flow of Information Act, In re Death Investigation of Jeffrey Alan Skjervold, No. CV 07 168, Blue Earth Cty., Minn., Dist. Ct., dated Feb. 13, 2007. Because the man held his wife hostage and shot at least two police officers, the court found that that he had committed felony violations and that there was "no doubt" that information obtained by the reporter "would be clearly relevant to such crimes." In so holding, it rejected the newspaper's argument that the exception only applies where a defendant faces actual prosecution. Because the man killed himself, the court held that the information could not be obtained through alternative means. Finally, the district court held that there was a compelling and overriding interest requiring disclosure, stating, "[t]he right claimed by the [newspaper] to seek the 'truth' must never be allowed to take precedent over the compelling and overriding interest of law enforcement authority to maintain human life." The Court of Appeals reversed, holding that the county attorney had not established the third factor: “Essentially, the county attorney argues that it needs to conduct discovery to find an injustice, but declines to connect the discovery to a particular injustice. We conclude that the statute requires that the particular injustice be identified.” In re Death Investigation of Skjervold, 742 N.W.2d 686, 690 (Minn. App. 2008).

In construing the defamation-action exception to the statutory privilege after the 1998 amendments, the Minnesota Court of Appeals held that the exception applied to the privilege regarding the identity of a source, but not to the privilege for unpublished materials. Ducklow v. KSTP-TV, LLC, 42 Med. L. Rep. 1431, 1434 (Minn. App. March 3, 2014) (unpublished); see also In re Mahtani, No. 27-CV-17-11589, 45 Med. L. Rptr. 2408, 2412-13 (Minn. Dist. Ct., Hennepin Cty., Sept. 25, 2017) (finding Ducklow persuasive, although unpublished decisions of the Minnesota Court of Appeals are not binding precedent).

In Range Development Co. of Chisholm v. Star Tribune, 885 N.W.2d 500 (Minn. App. 2016), plaintiff sought to compel disclosure of the identity of a confidential source who had provided a reporter with a copy of a government document from which the reporter wrote an article. The Court of Appeals reversed a district court order compelling disclosure. In a defamation action, the appellate court held §595.025 “requires an affirmative showing, with concrete evidence, that disclosure of the source will lead to persuasive evidence on the elements of a defamation claim. District courts, when conducting this analysis, must necessarily review the merits of the defamation claim, but will not . . . impose a prima-facie-case requirement.” Id. at 505; see also id. at 511 (“the act puts the burden on [plaintiff], not [the reporter] to demonstrate that the source has relevant information and to establish probable cause that this information is clearly relevant to falsity or actual malice. . . . While this demonstration need not rise to the level of establishing a prima facie case, it does require an affirmative showing. And the burden of that showing falls on [plaintiff], not [the reporter].”); id. at 509 (“when examining whether a party has affirmatively shown that disclosure of the source will lead to persuasive evidence, we conclude that a district court should objectively assess the proffered evidence.”).

Conjecture that the reporter might have discussed something of substance with the source beyond mere receipt of the government report would not suffice. Id. at 510-12. The appellate court held that the district court erred by ordering disclosure, and explained:

[Plaintiff] has not made the affirmative showing required to merit an exception to the act's general rule that a court may not require a reporter to disclose confidential sources. See Minn.Stat. § 595.023 (2014) (stating that general rule). It has neither demonstrated that the source's identity will lead to relevant evidence nor established probable cause that the source has information clearly relevant to the issues of defamation. Both showings require concrete evidence that discovery of the source will lead to persuasive evidence. And while [the reporter] may have embellished the report in this article, because there has been no showing that the source supplied him with information other than the report, there has been no demonstration that learning the source's identity would lead to persuasive evidence on the issues of falsity or malice.

Id. at 511-12.

Text of statute
Following its most recent amendments in 1998, the Minnesota Free Flow of Information Act provides:

595.021 News media; protection of sources; citation.

Sections 595.021 to 595.025 may be cited as the "Minnesota free flow of information act."

595.022 Public policy.

In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information. To this end, the freedom of press requires protection of the confidential relationship between the news gatherer and the source of information. The purpose of sections 595.021 to 595.025 is to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.

595.023 Disclosure prohibited.

Except as provided in section 595.024, no person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public shall be required by any court, grand jury, agency, department or branch of the state, or any of its political subdivisions or other public body, or by either house of the legislature or any committee, officer, member, or employee thereof, to disclose in any proceeding the person or means from or through which information was obtained, or to disclose any unpublished information procured by the person in the course of work or any of the person's notes, memoranda, recording tapes, film or other reportorial data whether or not it would tend to identify the person or means through which the information was obtained.

595.024 Exception and procedure.

Subdivision 1. Disclosure; application. A person seeking disclosure may apply to the district court of the county where the person employed by or associated with a news media resides, has a principal place of business or where the proceeding in which the information sought is pending.

Subd. 2. Disclosure allowed; conditions. The application shall be granted only if the court determines after hearing the parties that the person making application, by clear and convincing evidence, has met all three of the following conditions:

(1) that there is probable cause to believe that the specific information sought (i) is clearly relevant to a gross misdemeanor or felony, or (ii) is clearly relevant to a misdemeanor so long as the information would not tend to identify the source of the information or the means through which it was obtained,

(2) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights, and

(3) that there is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice.

Subd. 3. Determination; appeal. The district court shall consider the nature of the proceedings, the merits of the claims and defenses, the adequacies of alternative remedies, the relevancy of the information sought, and the possibility of establishing by other means that which the source is expected or may tend to prove. The court shall make its appropriate order after making findings of fact. The order may be appealed directly to the court of appeals according to the rules of appellate procedure. The order is stayed and nondisclosure shall remain in full force and effect during the pendency of the appeal. Where the court finds that the information sought has been published or broadcast, there shall be no automatic stay unless an appeal is filed within two days after the order is issued. Either party may request expedited consideration.

595.025 Defamation.

Subdivision 1. Disclosure prohibition; applicability. The prohibition of disclosure provided in section 595.023 shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.

Subd. 2. Disclosure conditions. Notwithstanding the provisions of subdivision 1, the identity of the source of information shall not be ordered disclosed unless the following conditions are met:

(a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation;

(b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.

Subd. 3. Determination; appeal. The court shall make its order on the issue of disclosure after making findings of fact, which order may be appealed to the court of appeals according to the rules of appellate procedure. During the appeal the order is stayed and nondisclosure shall remain in full force and effect.

B. State constitutional provision

The Minnesota Supreme Court has declined to apply the state constitution as a source for a reporter's privilege, for the same reasons it found no protection under the First Amendment, at least in criminal cases where the reporter is asked to testify to events personally witnessed or to produce unpublished photographs. State v. Turner, 550 N.W.2d 622, 628 (Minn. 1999). The Turner court stated, "This court has once before refused to interpret [the state constitution's] language to provide greater protection to reporters than the First Amendment, and we do so again today."

However, Minnesota state courts continue to recognize some degree of constitutional protection for journalist's sources and materials, and the state constitutional protection is co-extensive with the federal level of protection. Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608, 610 (Minn. Ct. App. 1997), overruled to the extent inconsistent withWeinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003); see also Weinberger, 668 N.W.2d at 672, n.5 ("We do not address that issue because neither party has properly put that issue before the court, and it was not considered by the district court."); Turner 550 N.W.2d at 629 (requiring in camera review of journalist's unpublished photos before disclosure compelled).

C. Federal constitutional provision

Recognition of a reporter's privilege based upon the First Amendment varies between state and federal courts in Minnesota.

The Minnesota Supreme Court held in State v. Turner, 550 N.W.2d 622, 628 (Minn. 1996) that "no qualified constitutional privilege exists under the First Amendment that would protect reporters from compelled testimony in a criminal case." However, Minnesota state courts continue to recognize some degree of federal constitutional protection for journalist's sources and materials. Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608, 610 (Minn. Ct. App. 1997), overruled to the extent inconsistent withWeinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003); see also Weinberger, 668 N.W.2d at 672, n.5 ("We do not address that issue because neither party has properly put that issue before the court, and it was not considered by the district court."); Turner 550 N.W.2d at 629 (requiring in camera review of journalist's unpublished photos before disclosure compelled).

Further, the Supreme Court appeared to backpedal from Turner's strong language in 2006, within the context of a lawyer disciplinary proceeding. In re Charges of Unprofessional Conduct, 720 N.W.2d 807 (Minn. 2006). The court there ultimately held that resolution of the case did not require it to decide whether a First Amendment journalist's privilege existed. 720 N.W.2d at 817. However, in reaching this conclusion, it left the door open to future recognition of the privilege. See generally 720 N.W.2d at 816ñ17. Journalists challenging a subpoena for privileged material (confidential sources or unpublished information) in Minnesota state court should rely primarily on the statutory privilege but also discuss the federal and common law privileges, both to preserve the issue on appeal and to inform judicial analysis of the statutory issue. See alsoRange Development Co. of Chisholm v. Star Tribune, 885 N.W.2d 500, 505 (Minn. App. 2016) (“We address the issues in this case — whether the district court erred by ordering disclosure of [the reporter’s] confidential source — within the framework of the [Minnesota Shield Law]. The interpretation of that statute presents a legal issue, which this court reviews de novo. . . . Weinberger, 668 N.W.2d at 671-72. We analyze the framework of the defamation exception by recognizing the relevance and probable-cause requirements of the act as interpreted in Weinberger and in light of Minnesota precedent addressing the intersection between defamation law and the First Amendment. Because our analysis in that regard is dispositive, we do not reach the issues of whether a First Amendment or common-law privilege exists. But because of the close relationship between those issues, a discussion of the caselaw on First Amendment and common-law privileges informs our analysis of the statutory issue.”) (emphasis added).

The federal court has recognized a significant First Amendment privilege. See Keefe v City of Minneapolis, 41 Med. L. Rep. 1275, 1277 (D. Minn. May 25, 2012) (“[M]ost federal courts grant a qualified privilege for journalists against compelled disclosure of information gatherer in the news-making process. . . . Where a court finds the First Amendment rights of the reporter outweigh the requesting party’s need for the information and grants the privilege, it typically extends to a reporter’s underlying work product, as well as an informant’s identity.”; J.J.C. v. Fridell, 165 F.R.D. 513, 516 (D. Minn. 1995) ("[M]ost federal courts have assumed the [reporter's] privilege protects a reporter's underlying work product as well as an informant's identity."). In Fridell, Magistrate Judge Montgomery (now U.S. District Judge Montgomery) applied the balancing approach followed in most federal courts, under which "the reporter's privilege is defeated only where the information sought is: (1) critical to the maintenance or the heart of the claim; (2) highly material and relevant; and (3) unobtainable from other sources." Fridell, 165 F.R.D. at 516. Keefe applied the same test, explaining further that the “mere possibility of impeachment evidence is an insufficient reason to vitiate the qualified privilege.” 41 Med. L. Rep. at 1279.

This First Amendment privilege is similar to the Minnesota statutory privilege (as of the 1998 amendments), but not identical. For example, some information in civil cases might be compelled under the federal privilege that would not be compelled under the state statute.

D. Other sources

Inherent judicial power

Although rejecting protection for unpublished but nonconfidential information under the First Amendment and under the state statute, the Minnesota Supreme Court has directed the lower courts to review the requested information for themselves before requiring journalists to turn the information over to the parties in a case. State v. Turner, 550 N.W.2d 622, 629 (Minn. 1996). The court in Turner stated,

We believe that concerns of overburdening the news media justify the implementation of an in camera procedure for reviewing unpublished information, including photographs, before forcing a news organization to disclose information in its possession to a litigant. If a litigant asserts that unpublished information or photographs possessed by a newspaper may be relevant to his or her case, in camera review by the district court is an appropriate means of balancing the defendant's need for evidence to support his or her claims against the public's interest in a free and independent press.

The only information the court should release would be information relevant to the requesting party's theory of the case, as defined by that party's attorneys.

Rules of procedure--avoiding undue burden

Rule 22.02 of the Minnesota Rules of Criminal Procedure provides that the district court on motion may quash or modify a subpoena for production of documentary evidence or objects, "if compliance would be unreasonable or oppressive." Rule 26.03 of the Minnesota Rules of Civil Procedure allows the district court to issue "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."

In State v. Ross, 22 Med. L. Rptr. 2509 (Ramsey Cty., Minn., Dist. Ct. 1994), the district court relied in part upon Criminal Rule 22.02 to quash a criminal defendant's subpoena to newspaper reporters in connection with a sentencing proceeding after she pleaded guilty to the death of her four-year-old son. The court stated:

A subpoena in a criminal case must not create an "unreasonable or oppressive burden." Minn. R. Crim. Proc. 22.02. Subpoenas directed at the news media present special problems, in addition to the time and attention which is diverted from gathering and presenting news as a result of having to respond to the subpoenas. . . . [I]t is important for reporters to maintain objectivity and to be perceived by their sources and by their readers as neutral in public controversies, including criminal proceedings. If reporters are compelled to testify as witnesses on behalf of any party in a criminal trial or civil suit, they risk being perceived as advocates and their position of neutrality may be impaired. This may lead to a loss of credibility with readers and to increased difficulty in obtaining information. Compelling reporters to testify about material obtained in confidence or from entirely confidential sources also endangers their ability to obtain information from future confidential sources.

22 Med. L. Rptr. at 2510-11. The court, further relying upon the shield statute and upon the constitutional privilege, found that the defendant had not met any of the conditions for compelling disclosure of information from the reporters relating to stories they had written about her son's death.

The argument of undue or improper burden can succeed even if the information sought has been published. In an unpublished order in United States v. Ford, Crim. No. 4-92-112 (D. Minn. 1992), the court quashed a criminal defendant's subpoena against two newspapers that sought copies of "all articles" that had appeared in the newspapers over a three-week period relating to the shooting of a police officer and "relating to racial tensions stemming from the shooting." The court held that the defendant's attorney could find the articles through her own research, and that it was improper to shift that burden to the newspapers. It stated,

Appearances by the newspapers are not necessary to authenticate the articles, to the extent they have evidentiary value. Fed. R. Ev. 902(6). Insofar as defense counsel seeks to have the newspapers make the search and selection concerning the articles, the subpoenas shift the burden of trial preparation from defense counsel onto the newspapers; no matter what the extent of the newspapers' resources may be relative to the criminal defendant, this sort of burden-shifting is an unfair imposition upon innocent third-parties.

See J. Borger, Resisting Subpoenas for Published or Broadcast Information, 12 Commc'ns Lawyer, Spring 1994, at 10 (ABA). With the ready availability to the public of media databases, this reason for quashing subpoenas for published information has become even more compelling.

Parties to a lawsuit or criminal proceeding might seek a reporter’s testimony to authenticate quotations or information attributed to a named source in a published report. Published information is not protected by the statutory privilege, but compelling a reporter to testify against a named source (who denies making the published statement) nevertheless could be unduly burdensome, both in terms of time, in terms of creating an impression that the reporter is taking sides in the litigation, and in creating a risk of cross-examination questions that would impinge on privileged material. This burden can be minimized if the parties agree (with or without encouragement from the court) to stipulate that “if called to testify, the reporter who wrote this story would say that X said as follows.” SeeUnited States v. Carlson, 41 Med. L. Rptr. 2767 (D. Minn. Sept. 16, 2013); Stipulation and Order Limiting Testimony of Reporter Paul McEnroe, State v. Buie, No. XX-94-335, Ramsey Cty., Minn., Dist. Ct., dated June 6, 1994.

III. Scope of protection

A. Generally

B. Absolute or qualified privilege

The constitutional privilege in Minnesota is a qualified one in all types of cases. On its face, the statutory privilege is qualified in all criminal proceedings and in civil defamation actions and absolute in other civil actions.

C. Type of case

1. Civil

On the face of the statute, the only civil actions in which a court could compel disclosure of confidential or unpublished information are defamation actions. Minn. Stat. §§ 595.024 (permitting compelled disclosure only where the specific information sought is clearly relevant to a felony, gross misdemeanor, or misdemeanor); 595.025 (permitting compelled disclosure in defamation actions). The defamation exception has been applied to compel disclosure in an action for deceptive trade practices and interference with prospective business advantage from a "media defendant in what is essentially a defamation case" where the requested information was relevant to whether the defendant knew that a broadcast was deceptive and yet chose to air it. Aequitron Medical, Inc. v. CBS Inc., 24 Media L. Rep. 1025, 1027 (S.D.N.Y. 1995).

In Johnson v. CBS Inc., the federal court compelled a television defendant to disclose notes, outtakes, and documents reviewed in the course of investigating and producing a televised report in a case alleging tortious interference with prospective contractual relations. No. CIV-3-95-624, 1996 WL 907735 (D. Minn. Sept. 14, 1996) (unpublished). (The Court later held that defamation standards would apply to plaintiff's claims, although plaintiff had not asserted a claim for defamation. Johnson v. CBS Inc., 10 F. Supp.2d 1071, 1073 (D. Minn. 1998).) This decision came after the Minnesota Supreme Court had held that the Minnesota statute did not protect unpublished but nonconfidential information, and before the 1998 legislation that restored protection for such information. The court noted that it might have reached a different conclusion if the plaintiff had been seeking confidential source information protected under the statute. 1996 WL 907735 at *2, n.2. Therefore, the 1998 legislation might produce a different result if the question arises in a later case. Indeed, later courts have refused to compel disclosure of unpublished information even in defamation cases, because the defamation exception on its face applies only when “the identity of the source will lead to relevant evidence on the issue of actual malice” and therefore does not require disclosure of unpublished information unrelated to the identity of a confidential source. Ducklow v. KSTP-TV, LLC, Nos. A13-1279, -1280, -1281, 42 Med. L. Rptr. 1431, 1434-35 (Minn. App. March 3, 2014) (unpublished); In re Mahtani, No. 27-CV-17-11589, 45 Med. L. Rptr. 2408, 2412-13 (Minn. Dist. Ct., Hennepin Cty., Sept. 25, 2017).

The fact that the reporter or the news organization is not a party to the particular defamation action does not in itself prevent compulsory disclosure of confidential or unpublished information, but it may weigh against such disclosure. See, e.g., Weinberger v. Maplewood Review, 648 N.W.2d 249, 258 (Minn. App. 2002) ("Compelling disclosure of confidential sources of statements in an article about a public official, for the purpose of making the reporter a witness against sources, has significant potential to interfere with a reporter's ability to gather news. Given the nature of this case, the fact that [the reporter] is not, by asserting the privilege, shielding himself from liability and the potential burden to the newsgathering process of using reporters to impeach or testify against their sources, we conclude that this factor weighs against disclosure."), rev'd, 668 N.W.2d 667 (Minn. 2003); Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608, 611 (Minn. Ct. App. 1997) ("When the reporter is a party to the litigation, the balance may tip more in favor of disclosure than when the reporter is not a party."), overruled to the extent inconsistent withWeinberger, 668 N.W.2d 667.

2. Criminal

The qualified constitutional and statutory privileges protect confidential and unpublished information even in criminal cases, but can be overcome if the requesting party makes the necessary showings, as discussed in other sections of this outline.

E. Confidential and/or nonconfidential information

F. Published and/or non-published material

Minnesota's statutory privilege does not extend to published or broadcast material. In some cases, the published or broadcast status of particular information could be disputed. If so, a court determination that publication or broadcast has occurred could affect rights on appeal. The statute provides, "Where the court finds that the information sought has been published or broadcast, there shall be no automatic stay unless an appeal is filed within two days after the order is issued." Minn. Stat. § 595.024 subd. 3.

In an unpublished order in United States v. Ford, Crim. No. 4-92-112 (D. Minn. 1992), the court quashed a criminal defendant's subpoena against two newspapers that sought copies of "all articles" that had appeared in the newspapers over a three-week period relating to the shooting of a police officer and "relating to racial tensions stemming from the shooting." The court held that the defendant's attorney could find the articles through her own research, and that it was improper to shift that burden to the newspapers. It stated,

Appearances by the newspapers are not necessary to authenticate the articles, to the extent they have evidentiary value. Fed. R. Ev. 902(6). Insofar as defense counsel seeks to have the newspapers make the search and selection concerning the articles, the subpoenas shift the burden of trial preparation from defense counsel onto the newspapers; no matter what the extent of the newspapers' resources may be relative to the criminal defendant, this sort of burden-shifting is an unfair imposition upon innocent third-parties.

See J. Borger, Resisting Subpoenas for Published or Broadcast Information, 12 Commc'ns Lawyer, Spring 1994, at 10 (ABA). With the ready availability to the public of media databases, this reason for quashing subpoenas for published information has become even more compelling.

Parties to a lawsuit or criminal proceeding might seek a reporter’s testimony to authenticate quotations or information attributed to a named source in a published report. Published information is not protected by the Minnesota statutory privilege, but compelling a reporter to testify against a named source (who denies making the published statement) nevertheless could be unduly burdensome, both in terms of time, in terms of creating an impression that the reporter is taking sides in the litigation, and in creating a risk of cross-examination questions that would impinge on privileged material. This burden can be minimized if the parties agree (with or without encouragement from the court) to stipulate that “if called to testify, the reporter who wrote this story would say that X said as follows.” SeeUnited States v. Carlson, 41 Med. L. Rptr. 2767 (D. Minn. Sept. 16, 2013); Stipulation and Order Limiting Testimony of Reporter Paul McEnroe, State v. Buie, No. XX-94-335, Ramsey Cty., Minn., Dist. Ct., dated June 6, 1994.

G. Reporter's personal observations

No federal court decision in Minnesota addresses this aspect of a constitutional privilege.

The statutory privilege does not explicitly distinguish on this basis. Pre-1998 decisions interpreting the earlier version of the statute contain language declining to protect personal observations, or finding that the necessary conditions for disclosure were met in situations involving a reporter's personal observations. See, e.g., State v. Knutson, 523 N.W.2d 909, 912ñ13 (Minn. Ct. App. 1994) ("[T]he Reporters Shield Law does not apply where, as here, no source is at risk and the reporter would testify regarding events personally witnessed. . . . Rosen [the reporter] has no constitutional privilege not to testify regarding his personal observation of an assault. . . . Neither the Minnesota Reporters Shield Law nor the Constitution provide Rosen a privilege not to testify regarding events he personally witnessed while covering a story.").

H. Media as a party

In Grunseth v. Marriott Corp., the court noted that the reporter was not a party in the case where plaintiff was seeking to compel disclosure of sources. 868 F. Supp. 333, 335 (D.D.C. 1994) (applying Minnesota law in part). In ordering disclosure by defendant in Johnson v. CBS, Inc., the court observed that "[t]his is not a case where a non-party is being summoned to testify." No. CIV-3-95-624, 1996 WL 907735, *5 (D. Minn. Sept. 14, 1996) (unpublished).

In Bauer v. Gannett Co., Inc. (KARE 11), the court of appeals articulated five factors to be applied in "any consideration of cases arising under the [Minnesota Free Flow of Information] Act." 557 N.W.2d 608, 611 (Minn. Ct. App. 1997), overruled to the extent inconsistent withWeinberger v. Maplewood Rev., 668 N.W.2d 667, 672 n.5 (Minn. 2003) One of those factors was whether the media was a party to the litigation:

First, the determination of whether the privilege applies is influenced by the nature of the litigation and whether the reporter or news organization from whom disclosure is sought is a party to the litigation. When the reporter is a party to the litigation, the balance may tip more in favor of disclosure than when the reporter is not a party. This is particularly true in a suit alleging the defamation of a public official or public figure because plaintiffs in those cases must prove that the defamatory publication was made with "actual malice." The disclosure of a confidential source may be essential to the proof of actual malice if a plaintiff must demonstrate that the reporter's source was unreliable. . . . We stress, however, that this consideration is not dispositive, but rather one of multiple factors to be weighed in the district court's decision.

557 N.W.2d at 611. In a later defamation case in which the reporter and newspaper were not parties, the court of appeals applied the same factor, holding that

making the reporter a witness against sources[] has significant potential to interfere with a reporter's ability to gather news. Given the nature of this case, the fact that [the reporter] is not, by asserting the privilege, shielding himself from liability[,] and the potential burden to the newsgathering process of using reporters to impeach or testify against their sources, we conclude that this factor weighs against disclosure.

Weinberger v. Maplewood Review, 648 N.W.2d 249, 258 (Minn. App. 2002), rev'd, 668 N.W.2d 667. Whether state courts will continue to consider this factor after the supreme court's decision in Weinberger is unclear. See, e.g., Weinberger, 668 N.W.2d at 675, n.9 (overruling Bauer to the extent it was inconsistent with the court's holding, without discussing the nonparty status of the reporter and newspaper).

In Minnesota federal court, the journalist’s non-party status may weigh heavily against compelling disclosure of confidential sources or other unpublished information:

In calibrating the scale to weigh the respective concerns in this matter, it must be noted that [the reporter] is a stranger to this litigation. He is neither a party nor a witness to any of the underlying facts; he has no dog in this fight and has not accepted voluntarily the burden of discovery attendant to modern civil litigation, as the parties have. Accordingly, the concern for the unwanted burden thrust upon him is a consideration entitled to special weight in evaluating the balance of competing interests.

I. Defamation actions

Minn. Stat. § 595.025 subd. 1 expressly provides that the "prohibition of disclosure provided in section 595.023 shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice." Subdivision 2 provides that "the identity of the source of information shall not be ordered disclosed unless the following conditions are met: (a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation; (b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights."

The supreme court interpreted this exception in 2003, holding that a nonparty reporter had to disclose which defendants named in a libel action were confidential sources for an article he wrote about a high school football coach. Weinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003). The court found that the coach had satisfied the three requirements of Minn. Stat. § 595.025. 668 N.W.2d at 672ñ73. The court stressed that the test of relevance is whether evidence has "any tendency" to make a consequential fact more or less probable. 668 N.W.2d at 673. Therefore, where

the plaintiff has alleged that the defendant is the source of the allegedly defamatory statements, relevant evidence constitutes not only evidence on the source's knowledge, but also the source's identity. . . . [W]hen the identity of the speaker is hidden under the cloak of anonymity . . . it is self-evident that the identity of the speaker will lead to relevant evidence on the issue of actual malice.

668 N.W.2d at 673ñ74. The court further held that the probable cause requirement was satisfied because the district court's narrow order only required disclosure of those sources named as defendants, thereby ensuring that disclosure would lead to relevant information. 668 N.W.2d at 674.

IV. Who is covered

A. Statutory and case law definitions

While the Minnesota Free Flow of Information Act refers to the "news media," it extends protection to any "person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public."

b. Editor

c. News

d. Photo journalist

Courts have applied the privilege to protect photojournalists. See Findings of Fact, Conclusions of Law and Order, State v. Berglund, No. K5-00-600125, Ramsey Cty., Minn., Dist. Ct., dated April 12, 2000 (compelling city to return original videotape that police had seized from cable access show personnel).

2. Others, including non-traditional news gatherers

Courts have applied the privilege to nontraditional news gatherers. SeeIn re Mahtani, No. 27-CV-17-11589, 45 Med. L. Rptr. 2408, 2412 (Minn. Dist. Ct., Hennepin Cty., Sept. 25, 2017) (“The wide-cast net of the Act [shield statute] would appear to catch not only reporters and journalists working in traditional news media, but also internet bloggers, unpaid news-gatherers, even public relations consultants as long as they were engaged in any of the enumerated activities.”); Findings of Fact, Conclusions of Law and Order, State v. Berglund, No. K5-00-600125, Ramsey Cty., Minn., Dist. Ct., dated April 12, 2000 (compelling city to return original videotape that police had seized from cable access show personnel).

B. Whose privilege is it?

The privilege belongs to the "person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public," in the words of the statute. One district court has held that the "statutory privilege is that of the media, not of the sources." Order and Memorandum at 9, Jamieson v. Doe, No. MC 88-18860, Hennepin Cty., Minn., Dist. Ct., dated February 1, 1989.

V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

Minnesota imposes no special procedures or deadlines for service of a subpoena on journalists. Rule 45 of the Minnesota Rules of Civil Procedure does not set a minimum period between service and the time of testimony. Case law establishes that notice must be "reasonable" under the circumstances, but this is a flexible standard. SeeBaskerville v. Baskerville, 75 N.W.2d 762, 769 (Minn. 1956); Phillippe v. Comm'r of Pub. Safety, 374 N.W.2d 293, 297 (Minn. Ct. App. 1985).

2. Deposit of security

Minnesota law does not require the subpoenaing party to deposit any security to procure the testimony or materials of a reporter. Rule 45.02(a) requires that service be accompanied by tender of one day's witness fee plus mileage, and Rule 45.01 directs the subpoenaing party to advise the witness of the right to have certain expenses reimbursed under Rule 45.03(d).

3. Filing of affidavit

Minnesota law does not require the subpoenaing party to serve or file an affidavit to procure testimony or materials from a reporter. If the testimony or materials involve confidential or unpublished material protected by the statute, the subpoenaing party cannot compel disclosure without obtaining a court order in advance.

4. Judicial approval

A person seeking disclosure of information protected under the shield statute may apply to the district court for an order compelling disclosure. Minn. Stat. § 595.024 subd. 1. Disclosure is required only if the court grants the order upon a determination that the statutory conditions have been met.

5. Service of police or other administrative subpoenas

B. How to Quash

1. Contact other party first

In practice, a telephone call or letter to the attorney who has requested information from a reporter often will be enough to persuade the attorney to drop the request, at least when the reporter or news organization is not a party to the litigation in which the information is sought.

2. Filing an objection or a notice of intent

Minnesota Rule of Civil Procedure 45 was amended in 2006 and now mirrors, virtually in its entirety, the federal counterpart. Rule 45.04(b) states, "When information subject to a subpoena is withheld on a claim that it is privileged . . . the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim." Minn. R. Civ. P. 45.04(b).
In a civil action, Rule 45.03(b)(2) permits a written objection to a subpoena for documents, placing the burden on the attorney serving the subpoena to obtain a court order before the materials can be obtained ("[A] person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued."). The objection alone, however, does not relieve the person subpoenaed of the obligation either to appear at the deposition or to move to quash the deposition.
In a criminal action, Rule 22.02 of the Minnesota Rules of Criminal Procedure provides that the district court on motion may quash or modify a subpoena for production of documentary evidence or objects, "if compliance would be unreasonable or oppressive." Rule 26.03 of the Minnesota Rules of Civil Procedure allows the district court to issue "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."

3. File a motion to quash

a. Which court?

Motions under the Shield Law may be heard by the district court "of the county where the person employed by or associated with a news media resides, has a principal place of business or where the proceeding in which the information is sought is pending." Minn. Stat. §595.024 subd. 1.
Motions to quash that go beyond the Shield Law are motions for a protective order and can be heard by the district court in which the action is pending or the district court in the district where the deposition is to be taken. Minn. R. Civ. Proc. 26.03.
Rule 22.02 of the Minnesota Rules of Criminal Procedure provides that the district court on motion may quash or modify a subpoena for production of documentary evidence or objects, "if compliance would be unreasonable or oppressive." Rule 26.03 of the Minnesota Rules of Civil Procedure allows the district court to issue "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."

b. Motion to compel

c. Timing

Motions to quash a deposition should be brought before the time scheduled for the deposition. If the time is too short to permit normal briefing and scheduling, the court can expedite the briefing schedule. Minn. R. Gen. Prac. 115.07. The court also can grant an ex parte motion to postpone the deposition until such time as the motion to quash can be heard. David F. Herr & Robert S. Haydock, 1A Minnesota Practice, Civil Rules Annotated R 45.03, § 45:9 (6th ed., 2017). A subpoena for a deposition might also be quashed based on the lack of a reasonable time to comply. Keefe v City of Minneapolis, 41 Med. L. Rep. 1275, 1277 n.2 (D. Minn. May 25, 2012) (“This subpoena was served six days before the deposition was to take place, with the Rev. Martin Luther King holiday taking place in the intervening time. . . . The insufficiency of this notice and the lack of collegiality in the service of this subpoena would be unacceptable if the recipient was a party, and it certainly would not be permitted in the case of a non-party.”).

d. Language

Typical language for an objection: "Pursuant to Rule 45.04(b) of the Minnesota Rules of Civil Procedure, [objecting witness] hereby objects to the production, inspection, or copying of any and all of the materials designated in Exhibit A to the subpoena duces tecum dated ____, and signed by [attorney for subpoenaing party]. [Objecting witness] objects to the subpoena on the grounds, inter alia, that [grounds]."

Typical language for Notice of Motion and Motion to Quash: "To [attorney for the party serving the subpoena]: PLEASE TAKE NOTICE that [reporter or news organization] by the undersigned, will move this Court for an Order pursuant to Rules 26, 37, and 45 of the Minnesota Rules of Civil Procedure, providing: 1. That the subpoenas duces tecum served on [moving party] by [subpoenaing party] be quashed; and 2. That the notices of deposition of [moving party or witness] be quashed."

a. Necessity

b. Consequences of consent

c. Consequences of refusing

5. Briefing schedule

Privilege motions are considered nondispositive motions under Minnesota rules. The normal briefing schedule requires the moving party to serve and file motion papers at least fourteen days prior to the hearing, requires the responding party to serve and file opposition papers at least seven days before the hearing, and allows the moving party to serve and file reply papers at least three days before the hearing. Minn. R. Gen. Prac. 115.04. The court can waive or modify these time limits "if irreparable harm will result absent immediate action by the court, or if the interests of justice otherwise require." Minn. R. Gen. Prac. 115.07.

6. Amicus briefs

Amicus participation is unusual in Minnesota district courts. State court rules do not directly address such participation.
At the appellate level, amicus participation is routinely approved, following application for leave to participate under Minn. R. Civ. App. P. 129 (requests for leave generally must be filed within fifteen days after the filing of the notice of appeal).
Amici in cases involving the reporters' privilege have included individual news organizations, the Society of Professional Journalists (www.mnspj.org), the Minnesota Newspaper Association (www.mnnewspapernet.org), and the Minnesota Broadcasters Association (www.minnesotabroadcasters.com).

VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The person seeking to compel disclosure of information protected by the shield statute in a criminal case must establish each element for one of the exceptions by "clear and convincing evidence." Minn. Stat. § 595.024 subd.2.

In a defamation action, §595.025 “requires an affirmative showing, with concrete evidence, that disclosure of the source will lead to persuasive evidence on the elements of a defamation claim. District courts, when conducting this analysis, must necessarily review the merits of the defamation claim, but will not . . . impose a prima-facie-case requirement.” Range Development Co. of Chisholm v. Star Tribune, 885 N.W.2d 500, 505 (Minn. App. 2016); id. at 511 (“the act puts the burden on [plaintiff], not [the reporter] to demonstrate that the source has relevant information and to establish probable cause that this information is clearly relevant to falsity or actual malice. . . . While this demonstration need not rise to the level of establishing a prima facie case, it does require an affirmative showing. And the burden of that showing falls on [plaintiff], not [the reporter].”); id. at 509 (“when examining whether a party has affirmatively shown that disclosure of the source will lead to persuasive evidence, we conclude that a district court should objectively assess the proffered evidence.”).

B. Elements

1. Relevance of material to case at bar

In 2006, a Minnesota district judge held that a newspaper reporter had to disclose unpublished information obtained from a telephone interview with a suicidal man during a police standoff (the man ultimately killed himself). Order Re: MS 595.024 MN Free Flow of Information Act, In re Death Investigation of Jeffrey Alan Skjervold, No. CV 07 168, Blue Earth Cty., Minn., Dist. Ct., dated Feb. 13, 2007. Because the man held his wife hostage and shot at least two police officers, the court found that that he had committed felony violations and that there was "no doubt" that information obtained by the reporter "would be clearly relevant to such crimes." In so holding, the court rejected the newspaper's argument that the exception only applies where a defendant faces actual prosecution. The Court of Appeals reversed on other grounds, holding that the county attorney had not established the third factor: “Essentially, the county attorney argues that it needs to conduct discovery to find an injustice, but declines to connect the discovery to a particular injustice. We conclude that the statute requires that the particular injustice be identified.” In re Death Investigation of Skjervold, 742 N.W.2d 686, 690 (Minn. App. 2008).

Likewise, the supreme court stressed in Weinberger v. Maplewood Review that the test for relevance is a liberal one: whether evidence has "any tendency" to make a consequential fact more or less probable. 668 N.W.2d 667, 673 (Minn. 2003). In that case the court held that a high school football coach could obtain from a nonparty reporter the identities of his confidential sources who were also named defendants in the coach's defamation action. 668 N.W.2d at 675. The court considered both (1) whether disclosure of the source's identity would lead to relevant evidence on the issue of actual malice and (2) whether there was probable cause to believe that the source had information clearly relevant to the issue of defamation. 668 N.W.2d at 672ñ73. Concluding that both tests were met, the court stated,

the plaintiff has alleged that the defendant is the source of the allegedly defamatory statements, relevant evidence constitutes not only evidence on the source's knowledge, but also the source's identity. . . . [W]hen the identity of the speaker is hidden under the cloak of anonymity . . . it is self-evident that the identity of the speaker will lead to relevant evidence on the issue of actual malice.

668 N.W.2d at 673ñ74. The court further held that the probable cause requirement was satisfied because the district court's narrow order only required disclosure of those sources named as defendants, thereby ensuring that disclosure would lead to relevant information. 668 N.W.2d at 674.

To the extent it was not overruled by Weinberger, another instructive case is Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608 (Minn. App. 1997), overruled to extent inconsistent with Weinberger, 668 N.W.2d 667. In Bauer the court of appeals held that the "clearly relevant" standard would be satisfied by evidence that "went to the heart of the claim," and went on to state that "[t]he constitutional standard, as well as the plain meaning of the statutory text, however, require the district court to perform an exacting analysis of each individual request for disclosure of a confidential source or information leading to his or her identity to determine if that particular source or that particular information is clearly relevant to the claim." 557 N.W.2d at 611.

In State v. Knutson, the appellate court ordered in camera review of photographs because "there is a likelihood that a photograph will provide conclusive information as to whether Simmer was wearing brass knuckles at the time of Knutson's assault. . . . Photographs may provide more accurate information than conflicting eyewitness accounts as to whether Simmer was wearing brass knuckles." 539 N.W.2d 254, 258 (Minn. App. 1995) (emphasis added).

District courts do not abuse their discretion by denying discovery based on mere speculation about what evidence might turn up. Lewis v. St. Cloud State Univ., 33 Med. L. Rep. 1660, 1666 (Minn. App. March 22, 2005) (unpublished).

In Range Development Co. of Chisholm v. Star Tribune, 885 N.W.2d 500 (Minn. App. 2016), plaintiff sought to compel disclosure of the identity of a confidential source who had provided a reporter with a copy of a government document from which the reporter wrote an article. The Court of Appeals reversed a district court order compelling disclosure. Conjecture that the reporter might have discussed something of substance with the source beyond mere receipt of the government report would not suffice. Id. at 510-12. The appellate court held that the district court erred by ordering disclosure, and explained:

[Plaintiff] has not made the affirmative showing required to merit an exception to the act's general rule that a court may not require a reporter to disclose confidential sources. See Minn.Stat. § 595.023 (2014) (stating that general rule). It has neither demonstrated that the source's identity will lead to relevant evidence nor established probable cause that the source has information clearly relevant to the issues of defamation. Both showings require concrete evidence that discovery of the source will lead to persuasive evidence. And while [the reporter] may have embellished the report in this article, because there has been no showing that the source supplied him with information other than the report, there has been no demonstration that learning the source's identity would lead to persuasive evidence on the issues of falsity or malice.

2. Material unavailable from other sources

The statute requires that the person seeking to compel disclosure show that "that the information cannot be obtained by alternative means or remedies less destructive of first amendment rights." Minn. Stat. §§ 595.024 subd.2(2), 595.025 subd. 2(b).

In 2006 a Minnesota district court held that this standard was satisfied where the county sought information regarding a conversation between a newspaper reporter and a man who subsequently killed himself. Order Re: MS 595.024 MN Free Flow of Information Act, In re Death Investigation of Jeffrey Alan Skjervold, No. CV 07 168, Blue Earth Cty., Minn., Dist. Ct., dated Feb. 13, 2007. The court found no evidence that anyone had recorded the conversation, stating, "that leads to just one rather obvious conclusion: If we want the information, it has to come from the Free Press reporter." The Court of Appeals reversed on other grounds, holding that the county attorney had not established the third factor: “Essentially, the county attorney argues that it needs to conduct discovery to find an injustice, but declines to connect the discovery to a particular injustice. We conclude that the statute requires that the particular injustice be identified.” In re Death Investigation of Skjervold, 742 N.W.2d 686, 690 (Minn. App. 2008).

The supreme court reached a similar decision in Weinberger v. Maplewood Review, 668 N.W.2d 667 (Minn. 2003). In Weinberger the plaintiff sought to ascertain whether any of the defendants named in his defamation action were the confidential sources a newspaper reporter used in writing an article about the plaintiff's termination as the local high school's football coach. 668 N.W.2d at 669ñ70. The court found that the plaintiff had deposed each of the defendants to no avail: not one "owned up to any of the statements in question or provided information as to the source." 668 N.W.2d at 675. In fact, the parties did not dispute that this factor weighed in favor of disclosure. 668 N.W.2d at 675.

Most courts have required that the movant show an exhaustion of all reasonable alternative means of obtaining the information. . . . We decline to endorse any formulaic approach relying, for example, on numbers of potential sources interviewed or deposed to determine whether the "any alternative means" condition has been satisfied. But we note that this requirement places a burden on the movant to demonstrate that substantial efforts have been made to obtain the information through other means--what constitutes substantial efforts will necessarily vary from case to case.

In State v. Knutson, the appellate court ordered in camera review of photographs, even though eyewitnesses might testify to the same general information, because the "photographers . . . used an objective means of recording that information. It is that objective record, not the photographers' eyewitness impressions, that the subpoena seeks." 539 N.W.2d 254, 258 (Minn. App. 1995) (emphasis added). In a prior decision arising from the same criminal prosecution, the court of appeals held that "alternative means" were not present when the other eyewitness testimony was conflicting. State v. Knutson, 523 N.W.2d 909, 912ñ13 (Minn. App. 1994).

In J.J.C. v. Fridell, the court held that plaintiff's assertions that interviews and depositions had failed to reveal the information she was seeking "does not demonstrate an exhaustion of all reasonable alternative means to obtaining the information." 165 F.R.D. 513, 516 (D. Minn. 1995). Similarly, in Keefe v City of Minneapolis, 41 Med. L. Rep. 1275, 1280 (D. Minn. May 25, 2012), the court held that plaintiff had not exhausted all reasonable alternative means despite deposing five witnesses and despite his dissatisfaction with those witnesses’ answers.

The plaintiff's own memory can be a suitable alternative source. Aerial Burials, Inc. v. Minneapolis Star and Tribune Co., 8 Med. L. Rep. 1653 (Hennepin Cty., Minn., Dist. Ct. 1982). It clearly is not enough for a plaintiff to say that he has not been able to obtain the information from the journalists at depositions or in interrogatories. McNeilus v. Corporate Report, Inc., 21 Media L. Rep. 2171, 2174 ñ.75 (Dodge Cty., Minn., Dist. Ct. 1993).

a. How exhaustive must search be?

In Grunseth v. Marriott Corp., relying in part upon Minnesota law, the court quashed a subpoena to compel a reporter to disclose a source because the plaintiff had not "demonstrated, other than in conclusory language, that he has exhausted all other reasonable sources for obtaining the information." 868 F. Supp. 333, 335 (D.D.C. 1994).

b. What proof of search does a subpoenaing party need to make?

c. Source is an eyewitness to a crime

There are no specific Minnesota cases or statutory provisions on this point. This point likely would be considered as part of the other elements.

In State v. Knutson, the appellate court ordered in camera review of photographs, even though eyewitnesses might testify to the same general information, because the "photographers . . . used an objective means of recording that information. It is that objective record, not the photographers' eyewitness impressions, that the subpoena seeks." 539 N.W.2d 254, 258 (Minn. App. 1995) (emphasis added). In a prior decision arising from the same criminal prosecution, the court of appeals held that "alternative means" were not present when the other eyewitness testimony was conflicting. State v. Knutson, 523 N.W.2d 909, 912ñ13 (Minn. App. 1994).

3. Balancing of interests

Except in defamation cases, the person seeking to compel disclosure must show "that there is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice." Minn. Stat. § 595.024 subd.2(3).

In 2007 a Minnesota district court held in rather conclusory fashion that this standard was met. Order Re: MS 595.024 MN Free Flow of Information Act, In re Death Investigation of Jeffrey Alan Skjervold, No. CV 07 168, Blue Earth Cty., Minn., Dist. Ct., dated Feb. 13, 2007. In Skjervold, the court held that a newspaper reporter had to disclose unpublished information obtained from a telephone interview with a suicidal man during a police standoff (the man ultimately killed himself). Law enforcement sought the information for an "on-going investigation" into the man's suicide. However, the investigation was not focused on any particular person. Further, the court appeared to misplace its focus on past events: rather than considering whether law enforcement's need to fully investigate the suicide trumped the newspaper's need to maintain its independence, the court considered whether the newspaper's need to talk to the suicidal man trumped law enforcement's need to prevent his death. The court stated, "The right claimed by the [newspaper] to seek the 'truth' must never be allowed to take precedent over the compelling and overriding interest of law enforcement authority to maintain human life." The Court of Appeals reversed, holding that the county attorney had not established this factor: “Essentially, the county attorney argues that it needs to conduct discovery to find an injustice, but declines to connect the discovery to a particular injustice. We conclude that the statute requires that the particular injustice be identified.” In re Death Investigation of Skjervold, 742 N.W.2d 686, 690 (Minn. App. 2008).

The court of appeals' explanation of this requirement in Bauer v. Gannett Co., Inc. (KARE 11), may also be helpful, although it is arguably improper to consider the compelling interest factor in a defamation case. Bauer, 557 N.W.2d 608, 612 (Minn. Ct. App. 1997), overruled to the extent inconsistent withWeinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003); see also Weinberger, 668 N.W.2d at 673 (naming only three conditions for application of the defamation exception). In Bauer the court made clear that a "compelling interest" can weigh against disclosure as well as in favor of disclosure. 557 N.W.2d at 612. The court stated, "the court must consider whether there is a compelling interest in the information or source. . . . Thus, the court should consider not only the relevance but also the necessity of any information a confidential source might have. There may be no need to disclose the identity of relevant confidential sources: evidence of malice may be available from nonconfidential sources, or the defendant may have sufficient evidence of truth and prudence in publishing to prevail on a motion for summary judgment. . . . A compelling interest might also keep the court from disclosing the identity of a confidential source despite demonstrated relevance and necessity." 557 N.W.2d at 612 (internal citations omitted).

In Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (relying in part upon Minnesota statute), the court stated that "Plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption favoring First Amendment protections for a reporter's sources. This is not a case involving election fraud, or governmental corruption, or any other issue that affects the fundamental validity of the electoral process."

4. Subpoena not overbroad or unduly burdensome

5. Threat to human life

Minnesota case law and statutes do not expressly require the court to weigh whether the matter subpoenaed involves a threat to human life. Consideration of such a factor likely would be appropriate under other factors of the test.

6. Material is not cumulative

In State v. Knutson, the court of appeals considered the eyewitness testimony of a reporter, as a more or less nonbiased source, to be noncumulative despite the availability of other eyewitnesses who presented conflicting testimony. 523 N.W.2d 909, 912 ñ.13 (Minn. App. 1994).

7. Civil/criminal rules of procedure

Minnesota Rule of Civil Procedure 45 was amended in 2006 and now mirrors, virtually in its entirety, the federal counterpart. Rule 45.04(b) states, "When information subject to a subpoena is withheld on a claim that it is privileged . . . the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim." Minn. R. Civ. P. 45.04(b).
In a civil action, Rule 45.03(b)(2) permits a written objection to a subpoena for documents, placing the burden on the attorney serving the subpoena to obtain a court order before the materials can be obtained ("[A] person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued."). The objection alone, however, does not relieve the person subpoenaed of the obligation either to appear at the deposition or to move to quash the deposition.
In a criminal action, Rule 22.02 of the Minnesota Rules of Criminal Procedure provides that the district court on motion may quash or modify a subpoena for production of documentary evidence or objects, "if compliance would be unreasonable or oppressive." Rule 26.03 of the Minnesota Rules of Civil Procedure allows the district court to issue "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."

8. Other elements

C. Waiver or limits to testimony

1. Is the privilege waivable?

The Minnesota statute does not address the issue of waiver.

In J.J.C. v. Fridell, the court held that "[v]oluntary disclosure of information covered by a privilege could constitute, but does not mandate, a waiver of the privilege." 165 F.R.D. 513, 517 (D. Minn. 1995). In Ducklow v. KSTP-TV, LLC, 42 Med. L. Rep. 1431, 1435 (Minn. App. March 3, 2014) (unpublished), the Minnesota Court of Appeals recognized that privileges can be waived, but explained that “the privilege in this case extended only to those portions of the video that were not aired. Thus, disclosure of the aired portions of the video would not waive the privilege.”

2. Elements of waiver

a. Disclosure of confidential source's name

A published statement that someone is not the source of information does not constitute a waiver of the privilege. J.J.C. v. Fridell, 165 F.R.D. 513, 517 (D. Minn. 1995) ("Mentioning who is not an informant is not the same as indicating who is the informant."). Only actual disclosure of the identity of the informant to a third party might constitute (but would not mandate) waiver. 165 F.R.D. at 517.

b. Disclosure of non-confidential source's name

Under the logic discussed in the previous section, disclosure of the name of a nonconfidential source would not constitute a waiver of any privilege for any information other than what has been disclosed.

VII. What constitutes compliance?

A. Newspaper articles

In an unpublished order in United States v. Ford, Crim. No. 4-92-112 (D. Minn. 1992), the court quashed a criminal defendant's subpoena against two newspapers that sought copies of "all articles" that had appeared in the newspapers over a three-week period relating to the shooting of a police officer and "relating to racial tensions stemming from the shooting." The court held that the defendant's attorney could find the articles through her own research, and that it was improper to shift that burden to the newspapers. It stated,

Appearances by the newspapers are not necessary to authenticate the articles, to the extent they have evidentiary value. Fed. R. Ev. 902(6). Insofar as defense counsel seeks to have the newspapers make the search and selection concerning the articles, the subpoenas shift the burden of trial preparation from defense counsel onto the newspapers; no matter what the extent of the newspapers' resources may be relative to the criminal defendant, this sort of burden-shifting is an unfair imposition upon innocent third-parties.

B. Broadcast materials

C. Testimony vs. affidavits

The parties could stipulate to the authenticity of published or broadcast materials as produced by the news organization, or they could agree to accept an affidavit in place of testimony, particularly to confirm that the material is a true and accurate copy of what was published or broadcast. They also could stipulate to calling the reporter as a witness only if the identified source disputes the accuracy of published material, and to limiting the testimony of the reporter to confirming what has been published. See, e.g., United States v. Carlson, 41 Med. L. Rptr. 2767 (D. Minn. Sept. 16, 2013); Stipulation and Order Limiting Testimony of Reporter Paul McEnroe, State v. Buie, No. XX-94-335, Ramsey Cty., Minn., Dist. Ct., dated June 6, 1994.

D. Non-compliance remedies

1. Civil contempt

Under Minn. R. Civ. P. 37.02, a court is authorized to impose sanctions for failure to comply with discovery orders. Civil contempt is one type of sanction. See Rule 37.02(b)(4) ("In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination."); see also Minn. Stat. §588.01, subd. 3 (8). In determining whether to impose a severe sanction, such as civil contempt, a court will examine "the extent of disobedience, the motivation for it, []whether it was intentional or negligent," and "whether the disobedience caused any prejudice to the party obtaining the order compelling discovery." David F. Herr & Robert S. Haydock, 1A Minnesota Practice, Civil Rules Annotated R 37.02, § 37:9 (6th ed., 2017); see also Minnesota State Bar Assoc. v. Divorce Assistance Assoc. Inc., 248 N.W.2d 733. 740 (Minn. 1976) ("[S]uch a sanction is appropriate only where the alleged contemnor has acted contumaciously, in bad faith, and out of disrespect for the judicial process.").

Civil contempt is "generally imposed to compel compliance with a court order." Herr & Haydock, supra § 37:9 see also Burkstrand v. Burkstrand, No., C2-01-1200, 2002 WL 378092, *4 (Minn. Ct. App. Mar. 12, 2002) (unpublished). It is used frequently to compel a nonparty's compliance with a discovery order because other sanctions would have little impact on a nonparty. Herr & Haydock, supra § 37:9.

a. Fines

Courts sometimes impose continuing fines for each day of noncompliance with an order. A $250 fine is the maximum permitted for contempt. Minn. Stat. § 588.10; seealso Wenger v. Wenger, 274 N.W. 517, 521 (Minn. 1937). Although the courts have inherent authority to sentence for contempt, independent of any statutory authorization, they should generally defer, as a matter of comity, to the statutory limits on such sentences. State v. Tatum, 556 N.W.2d 541, 547 (Minn. 1996); State v. Lingwall, 637 N.W.2d 311, 314 (Minn. Ct. App. 2001).

Violation of a lawful court order is constructive (rather than direct) contempt. Minn. Stat. § 588.01 subd. 3 (2001). Under Minnesota law, "[e]very court and judicial officer may punish a contempt by fine or imprisonment, or both. When it is a constructive contempt, it must appear that the right or remedy of a party to an action or special proceeding was defeated or prejudiced by it before the contempt can be punished by imprisonment or by a fine exceeding $50." Minn. Stat. § 588.02.

b. Jail

A court may impose a jail sentence on a person found in contempt of court. Minnesota State Bar Assoc.v. Divorce Assistance Assoc., Inc., 248 N.W.2d 733, 740ñ41 (Minn. 1976); Burkstrand v. Burkstrand, No., C2-01-1200, 2002 WL 378092, *4 (Minn. App. Mar. 12, 2002) (unpublished); Nelson v. Nelson, No. CX-96-280, 1996 WL 481533, *2 (Minn. App. Aug. 27, 1996) (unpublished). A civil contempt order, however, cannot impose a fixed sentence; instead, it must allow for release through compliance. See Minn. Stat. §588.12 ("When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, the person may be imprisoned until the person performs it, and in such case the act shall be specified in the warrant of commitment."). "[C]ivil contempt is said to give the contemnor the keys to the jail cell because compliance with the order allows him to purge himself and end the sanction." Burkstrand, 2002 WL 378092, at *4; see also Minnesota State Bar Assoc., 248 N.W.2d at 741.

3. Other remedies

In a defamation action against the news organization, the normal civil sanctions for contempt could apply, including prohibitions on evidence, orders that certain matters will be taken to be established, orders striking pleadings, and default judgment. Minn. R. Civ. Proc. 37.02(b). In McNeilus v. Corporate Report, Inc., the court allowed the publisher to protect the identity of its confidential source, but held that the publisher could not introduce into evidence at trial any confidential information or documentation that had not been disclosed to plaintiff at least ten days prior to trial. 21 Media L. Rep. 2171, 2175 (Dodge Cty., Minn., Dist. Ct. 1993)

Damages are available under Minn. Stat. § 588.11 for persons injured by violation of a court order. An award under this statute requires a showing of actual injury and the extent of that injury. See Campbell v. Motion Picture Mach. Operators, 186 N.W. 787, 789 (Minn. 1922) (holding that a contempt award for the benefit of the injured party "must be based on proof of the damage actually sustained"); Hanson v. Thom, 636 N.W.2d 591, 593-94 (Minn. App. 2001) (holding that award under Minn. Stat. § 588.11 is limited to that necessary to make aggrieved party whole for damages actually suffered, not to penalize the party in contempt); Time-Share Systems, Inc. v. Schmidt, 397 N.W.2d 438, 441 (Minn. App. 1986) (stating that "'indemnity must be based on proof of damages actually suffered or it cannot be sustained'" (quoting Westgor v. Grimm, 381 N.W.2d 877, 880 (Minn. App. 1986)).

VIII. Appealing

A. Timing

1. Interlocutory appeals

Most orders compelling or refusing to compel disclosure of source and unpublished material will be in the context of discovery rather than final judgments. Many jurisdictions would regard review of such orders as interlocutory, unless appeal is taken from an order holding the reporter in contempt for failing to disclose. The Minnesota statute, however, treats all appeals from orders relating to the shield statute as normal appeals under the state rules of appellate procedure. Minn. Stat. §595.024 subd. 3. This is true even of appeals from discovery orders in defamation actions. Minn. Stat. § 595.025 subd. 3.

B. Procedure

1. To whom is the appeal made?

Appeals from Minnesota state district court decisions involving the Minnesota shield law are made to the Minnesota Court of Appeals. Minn. Stat. § 595.024 subd. 3; Minn. Stat. § 595.025 subd. 3. Further review is discretionary in the Minnesota Supreme Court.

2. Stays pending appeal

Disclosure is automatically stayed during appellate review within the Minnesota state appellate courts; however, if the district court finds that the information sought has been published or broadcast, there is no automatic stay unless an appeal is filed within two days after the order compelling disclosure is issued. Minn. Stat. § 595.024 subd.3.

4. Standard of review

However, in Steele v. Tell, No. C2-94-981, 1994 Minn. App. LEXIS 1079, *8ñ9 (Minn. App. Nov. 1, 1994) (unpublished), the court of appeals affirmed a district court's denial of a motion to compel disclosure of confidential sources, stating that the district court had not abused its discretion.

5. Addressing mootness questions

In State v. Brenner, the Minnesota Supreme Court vacated a court of appeals decision regarding reporter's privilege "because there is no underlying criminal prosecution and the issue addressed and decided by the court of appeals is therefore moot." 497 N.W.2d 262, 263 (Minn.1993).

If a criminal case proceeds to trial while the privilege issue is on appeal, the appeal is moot and the district court order will be vacated, depriving it of any further effect. State v. Jenkins, No. A16-0584 (Minn. App., Aug. 30, 2016).

6. Relief

The typical results on appeal are a decision that the information need not be disclosed, that the information must be disclosed, or that the lower court must reconsider whether disclosure is necessary in light of the appellate court's discussion of the issues.

Appeals involving actual contempt orders are rare. In Thompson v. State, the Minnesota Supreme Court reversed an order holding a reporter in contempt (and ordering him jailed for ninety days) for refusing to answer the following question in a murder trial: "And who were the sources of your information for the news articles that you wrote in connection with the murder of Carol Thompson?" 170 N.W.2d 101, 102 (Minn. 1969). Although the supreme court noted the then-existing "paucity of authority" for the reporter's assertion of privilege, it disapproved of the "scattergun" question and stated,

No authority has been cited which would establish a basis for a finding of contempt of court for failure to answer a question with respect to sources as vague and imprecise as the one contained in the record. We are asked to assume that [the reporter] did in fact cause to be published certain relevant information which was prejudicial and that the petitioner [reporter] is entitled to know the source of such information so that he might use it in proving that his conviction resulted from a denial of his rights.

IX. Other issues

A. Newsroom searches

The authors are not aware of any "newsroom searches"--with or without a warrant--by Minnesota law enforcement authorities in the mode of Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (search of newsroom for photographic evidence to use against third parties). Sporadic problems have occurred with police or other law enforcement officials who, without a warrant, have simply seized photographs or materials from journalists. Some situations have been resolved quietly and quickly when the officers (or their superiors) have acknowledged that they acted improperly and have apologized to the journalists involved. Two cases have resulted in extensive litigation, as discussed below.

On December 22, 1986, WCCO-TV cameraman Gary Feblowitz and Star Tribune photographer Thomas Sweeney recorded a narcotics arrest at a convenience store in north Minneapolis; they shot from the store's public parking lot and the adjacent public sidewalk. FBI agents demanded that they turn over their film and videotape, threatened them with incarceration, and forcibly removed and confiscated their equipment, film, and videotape. They later explained that they were concerned that the identity of undercover agents at the scene of the arrest could be revealed through publication of the film and videotape, citing a report that one of the suspects arrested that night had allegedly hired someone to kill one of the undercover officers who was present at the scene of the arrest. In a series of unpublished rulings on motions to dismiss or for summary judgment, U.S. District Judge Donald Alsop:

ï Held that the Privacy Protection Act applied to the facts of the case, despite the defendants' claim that they had not seized the materials as part of "the investigation . . . of a criminal offense." The court held that Congress had not intended to limit the scope of the act to searches and seizures of journalists' materials to be used as evidence in criminal proceedings against third parties. (August 13, 1987)

ï Held that the statute's reference to "otherwise applicable law" (§§ 2000aa(a) and (b)) included the protections of the first and fourth amendments; therefore, the government had to show that the FBI agents who seized the material had complied with the first and fourth amendment protections afforded the journalists before the government could invoke the "life in danger" exception in the statute. (June 9, 1988)

ï Held that "warrantless seizures are allowable under the life-in-danger exception under the same circumstances that such seizures are allowable under the Fourth Amendment in general." (August 1, 1988)

ï Held that the seizure of materials from the journalists was a prior restraint in violation of the First Amendment and that "therefore, defendant cannot invoke the exceptions to the liability provision of the PPA." (August 1, 1988).

On December 28, 1999, Robert Zick and Kevin Berglund attended a "recognition event" at the Maplewood Community Center for the mayor and two city council members whose terms were ending. They wanted to record the farewell speeches for their public-access cable television program. A dispute arose regarding whether they would have to pay a $15 admission fee that was intended to cover the costs of food (that they told the person in charge they would not eat) and a farewell gift (that they considered inappropriate to pay because they were covering the event, not supporting the city officials). A city official agreed to waive the fee if Zick and Berglund agreed to certain "rules" on where and how they would videotape the event. As the official and Zick were discussing the location for videotaping, off-duty Maplewood police officers told Zick and Berglund they had to "pay or leave." One officer placed his hand on Berglund's arm to direct him outside. A physical encounter occurred that involved Berglund and four off-duty police officers, including the chief of police. Berglund, who had been videotaping all of the discussions and events, passed the camera to Zick, who continued videotaping. Berglund was arrested and charged with trespass and assault and taken away to jail. (He was later acquitted of all charges in a criminal jury trial.) Police then forcibly seized the videotape from Zick. They returned a copy of the videotape two days later, too late for Zick and Berglund to show on their next weekly cable show. In the criminal case against Berglund, the state court judge held that the police had violated the state shield law and as a sanction for that improper conduct ordered the city to return the original videotape to Berglund. Findings of Fact, Conclusions of Law and Order, State v. Berglund, No. K5-00-600125, Ramsey Cty., Minn., Dist. Ct., dated April 12, 2000. Zick and Berglund brought separate actions in federal court alleging violations of the Federal First Amendment Privacy Protection Act and the Federal Civil Rights Act. The district court granted summary judgment in favor of the defendants and against both Zick and Berglund on October 25, 2001. Berglund v. City of Maplewood, 173 F.Supp.2d 935 (D. Minn. 2001), aff'd sub nom. Zick v. City of Maplewood, 50 Fed. App'x 805, 806 (8th Cir. 2002) (unpublished). The court found that two exceptions to the statute applied under the circumstances of the case. First, because Berglund was arrested in connection with activities that he recorded on the videotape, the seizure satisfied the "criminal suspect" exception (allowing a government officer to search for and seize "work product" or "documentary materials" if "there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate"), even though the police seized the videotape from Zick (who was not arrested on any charge) rather than from Berglund. 173 F.Supp.2d at 949. Second, it held that the seizure satisfied the "destruction of evidence" exception, finding that "an objectively reasonable officer would have reason to believe that Zick, who was Berglund's companion, would erase or tamper with the videotape that provided evidence of Berglund's conduct." 173 F.Supp.2d at 949.

Federal Civil Rights Act (42 U.S.C. § 1983)

In Berglund v. City of Maplewood, the district court held that a warrantless seizure of materials protected by the First Amendment would violate the Fourth Amendment, and therefore support a claim for violation of the Civil Rights Act, unless "exigent circumstances" required immediate seizure to preserve evidence of a crime. 173 F.Supp.2d 935, 943 (D. Minn. 2001), aff'd sub nom. Zick v. City of Maplewood, 50 Fed. App'x 805, 806 (8th Cir. 2002) (unpublished). The court found that exigent circumstances were present in this case because "Zick was Berglund's companion and was in the position to destroy the video recording. Moreover, [police] believed that the tape could be destroyed, erased or tampered with if they did not take it from Zick." 173 F.Supp.2d at 944.

B. Separation orders

There are no reported cases or statutes in Minnesota limiting the scope of separation orders issued against reporters who are both trying to cover a trial and are on a witness list. Separation orders involving reporters who are on a witness list are very rare. Assuming that a separation order has been entered and a reporter appears on a witness list but the reporter has not actually been subpoenaed (and therefore a motion to quash the subpoena would be premature), a prudent first step in challenging the order would be to move to strike the reporter from the witness list or to determine the scope and admissibility of the reporter's potential testimony.